Section YAE.09.07 — Child Support Calculations

(a) Child support shall be established utilizing the income of the parents and the guidelines in this section.

(b) Determining Income Modified for Business Expenses. In determining a parent's monthly income, the Court may adjust a parent's gross income as follows:

(1) Adding wages paid to dependent household members.

(2) Adding undistributed income that the Court determines is not reasonably necessary for the growth of the business. The parent shall have the burden of proof to show that any undistributed income is reasonably necessary for the growth of the business.

(3) Reducing gross income by the business expenses that the Court determines are reasonably necessary for the production of that income or operation of the business and that may differ from the determination of allowable business expense for tax purpose.

(c) Determining Income Imputed Based on Earning Capacity. When a parent's income is less that the parent's earning capacity or is unknown, the Court may impute income to the parent at an amount that represents the parent's ability to earn, based on the parent's education, training and recent work experience, earnings during previous periods, current physical and mental health, history of child care responsibilities as the parent with primary physical placement and the availability of work in or near the parent's community. If evidence is presented that due diligence has been exercised to ascertain information on the parent's actual income or ability to earn and that information is unavailable, the Commission may impute to the parent the income that a person would earn by working thirty-five (35) hours per week for the federal minimum hourly wage under 29 USC 2016(a)(1). If a parent has gross income or income modified for business expenses below his or her earning capacity, the income imputed based on earning capacity shall be the difference between the parent's earning capacity and the parent's gross income or income modified for business expenses.

(d) Determining Income Imputed from Assets.

(1) The Court may impute a reasonable earning potential to a parent's assets if the Court finds both of the following:

(A) The parent has ownership and control over any real or personal property, including but not limited to, life insurance, cash and deposit account, stocks and bonds, business interests, net proceeds resulting from worker's compensation or other personal injury awards not intended to replace income, and cash and corporate income in a corporation in which the parent has an ownership interest sufficient to individually exercise control and the cash or corporate income is not included as gross income.

(2) The parent's assets are underproductive and at least one (1) of the following applies:

(A) The parent has diverted income into assets to avoid paying child support.

(B) Income from the parent's assets is necessary to maintain the child or children at the standard of living they would have had if they were living with both parents.

(3) The Commission shall impute income to assets by multiplying the total net value of the assets by the current 6-month treasury bill rate or any other rate that the Commission determines is reasonable and subtracting the actual income from the assets that were included as gross income.

(e) In-Kind Contributions. Only when agreed upon by both parties and the Tribal Court, in-kind contributions may be considered in lieu of cash child support and other non-assignable debts owed to the custodial party. The Court may consider circumstances of the parties including whether a non-custodial party is able obtain employment or has no other financial resources available to meet the current cash child support obligation.

(1) In-kind may not be ordered to repay assigned debts owed to a state or tribal jurisdiction. All in-kind orders must describe the type of in-kind contribution and must assign a dollar value to the contribution.

(2) Should an in-kind contribution not be met, the recipient of the in-kind is responsible to notify the Tribal Child Support Agency no later than the last day of each month of the non-compliance in writing. If a notice of non-compliance is not received by the last day of the month, it shall be presumed the in-kind contribution was met and the payor shall receive a credit based on the Court Order on the first day of each following month on his/her child support account statement maintained by the Tribal Child Support Agency.

(3) Nothing in this section allows a payor of in-kind contributions to exceed the limits on the hunting or gathering of all regulated natural resources including limits and seasons imposed by tribal law. In-kind orders may only apply to the extent permitted under tribal, state and federal laws.

(f) If a child is receiving Social Security cash benefits as a result of the natural parent's disability, the amount owed for current support shall be reduced by the amount of the child's monthly cash benefit. Should the child's monthly cash benefit exceed the amount of the monthly child support obligation there shall be no credit against any child support arrears debt.

(g) Child support obligations must be based on the percentages contained in Section YAE.09.07(h) and shall be represented as a whole dollar amount or sum certain in the Court Order.

(h) The basic child support guideline in this section shall be utilized when one party has primary placement of a child(ren). Child support is reduced to a whole dollar amount by multiplying the payor's or serial parent gross income by the number of children in the case as follows:

(1) 17% for one child

(2) 25% for two children

(3) 29% for three children

(4) 31% for four children

(5) 34% for five or more children

(i) If a payor has more than one child support case, the amount of the prior child support order or duty to support shall be deducted from his or her gross income and then multiplied by the percentages in (H) above.

(j) Non-marital children cases are determined by the child support order date and the legal obligation for marital children will begin on the child's date of birth.

(k) Child support arrears may be ordered by the Tribal Court dating back to the date of application or referral received by the Tribal Child Support Agency or the date of filing of the action if the Tribal Child Support Agency is not involved in the action.